Convictions: Slate's blog on legal issues

Yet Another California Primary

While much of the country trains its eyes on South Dakota and Montana tomorrow, California voters also will go to the polls.

According to my 23-page "Official Voter Information Guide" and my 40-page "Sample Ballot and Voter Information Pamphlet," I'm to choose candidates for four partisan offices (ranging from Congress to county committee) and two nonpartisan offices (judge and county supervisor). Then I'm to ponder two competing state ballot propositions (Ban eminent domain? Or not?), and one county ballot measure (Taxes, anyone?). Missing, for the first quadrennial year in memory, is a choice among candidates for president. It's thus as good a time as any to ask whether moving the presidential primary up to Feb. 5 was a good idea.

For the GOP, it might've been a smart political move. Sen. John McCain trounced his competitors in California that day, and he clinched the nomination not long afterward. The Democrats are another story. Sen. Hillary Clinton won by eight points, but victory in California did not deliver her the nomination. What's more, in the interim four months, Californians changed their mind: Were the election held now, polling indicates, Sen. Barack Obama would carry California by 13 points. For Democrats at least, California's primary once again seems not to matter.

But forget politics for a moment. It cost at least $51 million to hold that early, extra primary. How many California taxpayers do you suppose would say it was worth the expense?

Perhaps a "Lawyer's Lawyer" or "Judge's Judge" for the High Court

It's disappointing that neither presumptive presidential nominee names John Paul Stevens as the type of justice whom he'd like to nominate to the U.S. Supreme Court.

This is not to say that Stevens, a Republican appointee, belongs in every pantheon of GOP judges. Nor is it to say that Stevens, at times now called the leader of the court's liberal wing, belongs in every Democratic pantheon. It is, rather, to recall that in 1975, a U.S. president did well to select a justice based on legal acumen, with little regard for ideological bent. Stevens was the quintessential post-Watergate appointee. The Chicago native had not been active in partisan politics. His credentials were impeccable. As I've detailed here, he: was awarded the Bronze Star for having helped decipher the Japanese code during World War II; graduated top of his class from Northwestern University School of Law; clerked for Justice Wiley B. Rutledge; had a respected career as a name partner in an antitrust litigation firm; was chief counsel of an investigation that uncovered corruption in Illinois' Supreme Court; and had served on the U.S. Court of Appeals for the 7th Circuit since 1970.  Sen. Charles H. Percy, R-Ill., reminded his peers at the 1975 nomination hearings that five years earlier he'd called Stevens "a lawyer's lawyer"; now, he assured them, Stevens was "a judge's judge."

Stevens' positions on issues played little role in his selection. Case in point: Even as Stevens' nomination was under consideration, states were petitioning to lift the death-penalty moratorium in place since Furman v. Georgia (1972). Yet neither President Gerald R. Ford nor any senator asked him his views on capital punishment, publicly or privately. (Stevens—who within months of joining the high court would cast the essential vote in Gregg to allow some revised death-penalty statutes—has said that at the time he did not know how he would answer the question.)

Some of Stevens' opinions have drawn the ire of Democrats on the left, others of Republicans on the right. Yet the Republican president who appointed him wrote in 2005:

...  I am prepared to allow history's judgment of my term in office to rest (if necessary, exclusively) on my nomination thirty years ago of Justice John Paul Stevens to the U.S. Supreme Court. I endorse his constitutional views on the secular character of the Establishment Clause and the Free Exercise Clause, on securing procedural safeguards in criminal case and on the constitution's broad grant of regulatory authority to Congress. I include as well my special admiration for his charming wit and sense of humor; as evidence in his dissent in the 1986 commerce clause case of Maine v. Taylor and United States, involving the constitutionality of a Maine statute that broadly restricted any interstate trade of Maine's minnows. In words perhaps somewhat less memorable th[an] "Shouting fire in a crowded theater," Justice Stevens wrote, "There is something fishy about this case."

He has served his nation well, at all times carrying out his judicial duties with dignity, intellect and without partisan political concerns. Justice Stevens has made me, and our fellow citizens, proud of my three decade old decision to appoint him to the Supreme Court. ...

One hopes that the person whom voters entrust with the filling of federal judicial vacancies will give priority not to "partisan political concerns," but rather to "dignity" and "intellect," ideally tempered with "charming wit and sense of humor."

("Continuing" disclaimers, interposed here but not always to be repeated: First, as previously noted here, I had the privilege of serving as a law clerk to Justice Stevens in OT 1988 and am at work on a biography of him. Second, it''s been my privilege to give his campaign volunteer advice on international law and human rights; however, no one has consulted me on judicial selection.)

Judge Bait

David, you ask whether Obama or Clinton will reply to McCain's attack on those beloved bugaboos, activist judges, and, if so, what they should say. I agree, Doug, that throwing the "activist" insult back at Alito and Roberts, as Howard Dean did, is lame. Based on the Obama and Clinton campaigns' responses to my own efforts to report on the candidates' views on appointing judges, and Charlie Savage's, I'd say that each of them if nominated will come up with a decent response. Many of the moving parts are there: concern about executive overreaching, Guantanamo, police power run amok, employee rights, women's rights, the promise of equal protection, a general sense that courts should at times be a refuge for the disadvantaged. What I fear is that the Democratic candidate won't figure out how to make the composition of the courts a rallying cry in the way that McCain is already doing. Republicans are just mostly better at this. Their voters get what's at stake. I'm not sure what it would take for Obama or Clinton to get the same kind of purchase. Thoughts?

In the Philadelphia debate last month, I liked the substance of Obama's answer about the D.C. guns case: He likened the relationship between gun regulation and the right to bear arms in the Second Amendment to zoning ordinances and the protection against takings in the Fifth Amendment—in other words, you can have a constitutional right, and the state can also set reasonable limits on that right. I was annoyed, though, that both he and Clinton made a point of not taking a position on the merits of the case. They said they hadn't read the briefs. Please. Whoever is nominated had better figure out a good response to the court's ruling on the D.C. gun ban when it comes down in June. Because whatever the ruling, it has the potential to make trouble for the Democratic candidate and to make hay for McCain.

McCain's Intemperate and Unfortunate Assessment of the Third Branch

John McCain's harsh assessment of the federal judiciary is unworthy of him.

While his praise for the separation of powers and judicial restraint is fine, and unexceptional, Senator McCain's suggestion that there is a flaw in the constitutional design or that the Supreme Court is an unchecked, or renegade body is simply off-base. 

There is no flaw, Congress has virtually plenary authority over the Court's appellate docket.  Congress can withdraw cases from the Court if it believes matters have been wrongly handled, and perhaps more importantly, it can mandate that the Supreme Court handle a full range of cases so that it has less time and less discretion to find itself tempted to mischief. The fact that the Congress leaves these powers largely untouched may have more to do with what distresses Senator McCain than judicial activism. 

Since Congress has it within its authority to keep the constitutional system in balance, it is imprudent and unfair to once again make judges the scapegoat for the constitutional outcomes with which one disagrees.  Certainly, it is vast overstatement to claim that there is some "common and systematic abuse of our federal courts by the people we entrust with judicial power."  Or that "for decades now, some federal judges have taken it upon themselves to pronounce and rule on matters that were never intended to be heard in courts or decided by judges."

I have just returned from having the privilege with the Solicitor General of discussing with Justice Scalia and the judges of the U.S. Fifth Judicial Circuit the methods of constitutional and statutory interpretation.  To a person, every judge present, regardless of the president who appointed him or her, spoke in earnest about faithfully adhering to the rule of law.  It is a simple fact that the conventional meanings of language do present issues that are difficult or indeterminant or not fully addressed by the legislative body.

While Senator McCain is to be thanked for the praise given the Chief Justice and Justice Alito, it is unbecoming and two-dimensionally partisan to imply that Justices Breyer and Ginsburg are ipso facto out of the mainstream or that there is  some "systemic" disregard of the judicial oath by the men and women who serve their nation in the Third Branch in the lower courts at a salary that is dwarfed by extraordinary levels of work and the burdens of the office. 

David Barron is right, Senator Obama should take the opportunity to outline his own understanding of judicial role and philosophy, and it might begin with a more fair and honest assessment of the judiciary. Like Senator McCain, I often concur with the particular constitutional outcomes that John Roberts, Sam Alito (and powerfully intelligent Antonin Scalia who McCain curiously left off his praise list) often determine, though it devalues their service to imply that these jurists are worthy merely because they have arrived at a conservatively happy ending in given case.  Because the legal questions presented to the Court are seldom self-evident, these men have disagreed with each other on some not insignificant matters, including federal commerce limitations on state power, and most recently, the Chief Justice had more agreement with Justice Stevens in upholding Indiana's choice to require a government voter ID than his former Reagan administration colleagues. 

It is poisonous to the health of the constitutional system to trash the Court  as venal politicians.  In truth, a general word of thanks from Senator McCain, and his leadership in the Senate to approve a much-needed and long overdue pay increase for federal judges, would be more statesman-like and welcome.

Equal Pay Bill

 Thanks Emily for pointing out the wrongheadedness of McCain’s opposition to the Equal Pay Bill.

This very mild piece of legislation would have undone an incredibly bad Supreme Court decision in Ledbetter which held that the filing period to bring a Title VII action for discriminatory compensation begins running when the employer first discriminates, even if the employer continues to in fact discriminate for years afterward.  The Court in Ledbetter wrongly focused on an discriminatory state of mind—which, contrary to Justice Alito’s assertion in that case is not the sine qua non of unlawful discrimination but rather simply evidence of it---rather than the actual discrimination: differential treatment because of sex.  

As I wrote in Slate last year, it’s pretty obvious that the actual discrimination is ongoing as long the employee is in fact receiving lower pay because of her sex, even if the subsequent low paychecks are simply the carryover result of the initial discriminatory decision.  It doesn’t (or shouldn’t) matter if the person setting later salaries based on the original discriminatory salary isn’t motivated by discriminatory intent—the employer is discriminating as long as it is in fact paying the woman less because of her sex.  The point of Title VII isn’t just to punish bad actors with evil intentions—it’s also to prevent discriminatory actions and the injuries that result from them.

And, contra McCain, far from encouraging frivolous litigation, the Equal Pay Act might even discourage it.   As Emily points out, in many cases it take a while for the employee to find out that she’s being paid less than other people doing the same work (employees rarely discuss their salaries with each other and of course management has every incentive not to publicize pay disparities)—but Ledbetter says that’s tough—if you don’t find out after until after the quite short filing period ends (either 180 or 300 days), your action is time barred. This actually encourages anyone with a potential claim to hurry up and file—waiting until you’re sure you’ve been discriminated against will, under Ledbetter, often mean your case is time barred. 

I have to say it’s hard for me to believe that anyone who is really committed to equal pay would oppose this mild and sensible piece of legislation-- it doesn't open us up to lawsuits for "all kinds of problems"-- only for the problem of discriminatory pay.  Opposition suggests that McCain is most concerned with reducing the absolute number of cases filed—whether or not they have merit.

McCain for Equal Pay? Um, No.

John McCain said Wednesday that he supports "pay equity for women," but opposes the fix for Ledbetter's plight in the Equal Pay Bill because it "opens us up to lawsuits for all kinds of problems." That has a nice anti-litigation ring, but does it make sense? As Rich Ford pointed out in Slate after the Supreme Court's decision, the clear lesson the case holds for employees is "Sue early and often. If you suspect your boss might be discriminating with regard to your pay, you can't afford to wait around until you're sure." The Equal Pay Bill might give rise to more meritorious law suits. But couldn't it also stave off some losers--Rich or anyone else, thoughts? And what does it mean to be for pay equity for women while opposing what's on offer to actually help achieve it?

(Cross posted on Slate's women's blog, XX Factor.)

McCain Sings the Gitmo Blues

In a major foreign policy address today to the Los Angeles World Affairs Council, Sen. John McCain offered a few policy ideas that sounded, well, downright Democratic, even going so far as to cite Truman and Kennedy as role models:

America must be a model citizen if we want others to look to us as a model. How we behave at home affects how we are perceived abroad. We must fight the terrorists and at the same time defend the rights that are the foundation of our society. We can't torture or treat inhumanely suspected terrorists we have captured. I believe we should close Guantanamo and work with our allies to forge a new international understanding on the disposition of dangerous detainees under our control.

There is such a thing as international good citizenship. We need to be good stewards of our planet and join with other nations to help preserve our common home. The risks of global warming have no borders. We and the other nations of the world must get serious about substantially reducing greenhouse gas emissions in the coming years or we will hand off a much-diminished world to our grandchildren. We need a successor to the Kyoto Treaty, a cap-and-trade system that delivers the necessary environmental impact in an economically responsible manner. We Americans must lead by example and encourage the participation of the rest of the world, including most importantly, the developing economic powerhouses of China and India.

I r

Endorsing Obama

Today I endorse Barack Obama for president of the United States. I believe him to be a person of integrity, intelligence, and genuine good will. I take him at his word that he wants to move the nation beyond its religious and racial divides and that he wants to return the United States to that company of nations committed to human rights. I do not know if his earlier life experience is sufficient for the challenges of the presidency that lie ahead. I doubt we know this about any of the men or women we might select. It likely depends upon the serendipity of the events that cannot be foreseen. I do have confidence that the senator will cast his net widely in search of men and women of diverse, open-minded views and of superior intellectual qualities to assist him in the wide range of responsibilities that he must superintend. 

This endorsement may be of little note or consequence, except perhaps that it comes from an unlikely source: namely, a former constitutional legal counsel to two Republican presidents. The endorsement will likely supply no strategic advantage equivalent to that represented by the very helpful accolades the senator has received from many of high stature and accomplishment, including most recently, from Gov. Bill Richardson. Nevertheless, it is important to be said publicly in a public forum in order that it be understood. It is not arrived at without careful thought and some difficulty.

As a Republican, I strongly wish to preserve traditional marriage not as a suspicion or denigration of my homosexual friends but as recognition of the significance of the procreative family as a building block of society. As a Republican and as a Catholic, I believe life begins at conception, and it is important for every life to be given sustenance and encouragement. As a Republican, I strongly believe that the Supreme Court of the United States must be fully dedicated to the rule of law and to the employ of a consistent method of interpretation that keeps the court within its limited judicial role. As a Republican, I believe problems are best resolved closest to their source and that we should never arrogate to a higher level of government that which can be more effectively and efficiently resolved below. As a Republican and a constitutional lawyer, I believe religious freedom does not mean religious separation or mindless exclusion from the public square.

In various ways, Sen. Barack Obama and I may disagree on aspects of these important fundamentals, but I am convinced, based upon his public pronouncements and his personal writing, that on each of these questions he is not closed to understanding opposing points of view and, as best as it is humanly possible, he will respect and accommodate them. 

No doubt some of my friends will see this as a matter of party or intellectual treachery. I regret that, and I respect their disagreement. But they will readily agree that as Republicans, we are first Americans. As Americans, we must voice our concerns for the well-being of our nation without partisanship when decisions that have been made endanger the body politic. Our president has involved our nation in a military engagement without sufficient justification or a clear objective. In so doing, he has incurred both tragic loss of life and extraordinary debt jeopardizing the economy and the well-being of the average American citizen. In pursuit of these fatally flawed purposes, the office of the presidency, which it was once my privilege to defend in public office formally, has been distorted beyond its constitutional assignment. Today, I do no more than raise the defense of that important office anew, but as private citizen.

Sept. 11 and the radical Islamic ideology that it represents is a continuing threat to our safety, and the next president must have the honesty to recognize that it, as author Paul Berman has written, "draws on totalitarian inspirations from 20th-century Europe and with its double roots, religious and modern, perversely intertwined. ... wields a lot more power, intellectually speaking, then naïve observers might suppose." Sen. Obama needs to address this extremist movement with the same clarity and honesty with which he has addressed the topic of race in America. Effective criticism of the incumbent for diverting us from this task is a good start, but it is incomplete without a forthright outline of a commitment to undertake, with international partners, the formation of a worldwide entity that will track, detain, prosecute, convict, punish, and thereby stem radical Islam's threat to civil order. I await Sen. Obama's more extended thinking upon this vital subject as he accepts the nomination of his party and engages Sen. McCain in the general campaign discussion to come.

So Where Is Colin Powell?

The Republicans have a problem: John McCain.

Oh, he's a military hero and all, and despite a wife who seems to lurk over him—well, everywhere (Spitzer could have used such a mate)—he is our courageous, if economically unschooled, nominee. I say "our" since I am still counting myself a Republican so long as I'm not the last guy in the party who believes in a constitutionally limited government; the defense of all individual rights, civil and economic; and a balanced budget (ha, ha, ha, ha). It's not at all clear to me that McCain is for those things, but I know this: He is the only nominee capable of withstanding physical torture should the next president be taken hostage.

Of course, except for a handful of Navy Seals, few of the rest of us are up to the mental torture of Bush III (or is it WW III?) once we have deployed all those troops that we don't have a la south Korea all over the planet—for how long is it? A hundred years? A thousand?

A nominee whose main calling cards are making the Bush tax cuts permanent, chatting up the surge, and telling long-unemployed Michigan auto workers to forget about working ever again wins the vote of Steve Forbes, General Petraeus, and maybe Mitt Romney, who benefited from McCain's confession of economic dunceness but who would have every Mormon right to sit on his hands if he wants to.

The fact is average Americans never saw the tax cut (or if they did, they don't remember it), the surge works about as well as duct tape, and the economy could use someone who might actually be willing to reduce, not aggravate, the trillions already borrowed and spent for unfunded entitlements like Social Security and an unjust war. Of course, the IRS stimulus check is in the mail (well, once I fire up the TurboTax it will be), and it will no doubt arrive just in the nick of time to buy something frivolous, like a tank of gas.

Yes, the GOP is in great shape. As the defeat of the Republican offered up to succeed the eminently forgettable, one-time Majority Leader Dennis Hastert for the safest of safe House seats in the country revealed, the public can hardly wait to send an electoral thank you. Who wouldn't be grateful for an administration that sullied America's international standing, bungled us into a tragically costly war, and accomplished little other than the firing of its own U.S. attorneys without cause just to prove—well, hey, it's the president's constitutional prerogative to act foolishly.

So, Democrats, take your time. Call each other names, play the race card and the gender card. You're not missing anything important. The only chance the Republicans have of winning any district outside Orange County, Calif., (if that) is to track down Colin Powell. Not because he's black necessarily—though that's helpful when you're likely competing against a Lincoln-esque, Kennedy-esque, Martin Luther King Jr.-esque guy who could teach Benjamin Disraeli a thing or two about political speechifying. FYI, Geraldine Ferraro, it was Disraeli who pointed out that "eloquence is the child of knowledge." So, yes, Mrs. F, whatever was the point of your racial swipe, Obama would still have merited the public's attention. In any event, Powell is the best bet for VP since he had the presence of mind to keep the Persian Gulf War within its internationally imposed limit, to reject (or at least resist) virtually all of the overstated claims associated with the "war on terror" that put us on the wrong side of the Geneva Conventions, and, well, Bush effectively fired him—which, is surely the best credential of them all.

Good luck, Democrats, fielding your own dream team. We've got ours—well, half of it at least, if Alma Powell's cool with it. Maybe we could keep Cindy McCain from making those fascinating faces behind John long enough to make the case.